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Friday, November 2, 2012

Agency Defense -Narcotics

Agency Defense & MotiveI highly recommend an article (ssrn.com) by one of my colleagues, Professor Elaine Chiu (stjohns.edu),
about the role of motive in criminal law. Prof. Chiu uses New York's
agency defense -- which holds that a steerer who acts as an agent of
the buyer, not the seller, in a drug sale is guilty as an accomplice
to possession, not sale -- to argue for greater consideration of motive
in deciding guilt and punishment.Here is the abstract:

This
article builds on recent discussions amongst criminal law scholars on
the role that motive should play in the criminal law. It advocates for
greater consideration of a defendant's motive in all
critical decisions of the criminal justice process and offers concrete
guidelines. Unlike many other articles that focus on euthanasia or hate
crime, this one takes on the simple street sale of drugs and an
unusual defense known as the agency defense to demonstrate how the
criminal law can better accommodate motive. Created to avoid the harsh
jail terms imposed on convicted drug dealers, the agency defense
pretends that steerers who steer customers to drug dealers are the
purchasing agents of the customers. As agents, they avoid
criminal liability for the sale of drugs. Steerers, though, are not
agents; instead, they are commonly drug addicts themselves who support
their addictions by working as steerers. Instead of using a legal
fiction like agency, this article proposes that the criminal law
honestly and directly accommodate the true motive of steerers to
satisfy their drug addictions. Addiction is admittedly problematic as a
motive because of its low provability and low moral potency.
One acceptable accommodation may be to mandate that judges simply
consider whether drug offenders suffer from addictions in determining
the appropriate sentence. Aside from this consideration, not every
defendant will warrant an actual reduction in sentence. That would be
up to the discretion of the judge.